In Wainwright v Cennox plc [2023] EAT 101, the Employment Appeal Tribunal found that an employment tribunal had erred by failing to analyse whether acts of disability discrimination contrary to section 15 of the Equality Act 2010 (EqA 2010) also amounted to fundamental breaches of contract, entitling a long-serving employee to resign and claim constructive unfair dismissal and discriminatory dismissal.
The claimant, who was Head of Installations, was undergoing cancer treatment and absent on sick leave when her employer offered another employee the same role. This was done without reference to the claimant, on the basis that there would be sufficient work for two Heads of Installations once she returned. When she raised concerns, the HR Director assured her (inaccurately) that her role would not be affected. After her grievance went unresolved, she resigned. The tribunal upheld her claim of discrimination arising from disability under section 15 EqA 2010 but dismissed claims of direct discrimination, victimisation, wrongful dismissal and constructive unfair and discriminatory dismissal.
On appeal, the EAT held that the tribunal had failed to examine whether the discriminatory acts it had found under section 15 also amounted to fundamental breaches of contract. The tribunal should have considered whether such breaches existed, whether the claimant had affirmed her contract despite them, and whether they materially contributed to her decision to resign. This omission also meant that the tribunal did not go on to consider whether, if the claimant had been constructively dismissed, that dismissal itself constituted an act of discrimination.
The EAT therefore allowed the appeal and remitted the case, emphasising that tribunals must consider the overlap between findings of discrimination and the law of constructive dismissal. This case highlights the need for careful analysis where discrimination and constructive dismissal claims intersect, and the importance for employers of providing accurate assurances and handling role changes sensitively where employees are absent due to ill health.
Ms A Wainwright v Cennox Plc: [2023] EAT 101
